Changes to reporting duties for employers with sponsor licences

As of 9 November 2022, the Home Office Sponsor guidance has been updated to include a number of changes – the vast majority of those changes relate to delayed work start dates and long term absences.

We anticipate employers will welcome the following changes as they remove some of the administrative burden placed on sponsor licence holders when reporting changes in a migrant worker’s employment start date.

Reporting changes to work start and end dates

• Any change to a sponsored worker’s start or end date prior to applying for the visa must be reported on the Sponsor Management System (“SMS”) by way of a sponsor note against the Certificate of Sponsorship (“CoS”);
• Changes to a sponsored worker’s start or end date after applying for the visa but before permission is granted must be reported on the SMS by way of the ‘Report Migrant Activity’ function;
• If the visa is approved, the sponsored worker may begin employment earlier than the date stated on the Certificate of Sponsorship. The Guidance now explicitly states in such circumstances, an employer does not need to report the early start date via the SMS.

Reporting a change in start date beyond 28 days

Once the application is approved, the sponsored worker must begin their employment within 28 days from whichever following date is the latest:

• Start date as stated on the Certificate of Sponsorship;
• Valid from date as shown on the entry clearance visa sticker;
• Date of the granted permission to enter under the Creative Worker visa;
• Date of notification for the approval of the visa.

If the sponsored worker fails to begin their employment by the end of the 28 day period, the Sponsor must make a report on the SMS by way of the ‘Report Migrant Activity’ function. The employer must both report the delayed start date and provide an ‘accepted’ reason for the delay, or, they must notify the Home Office they have stopped sponsoring the migrant worker.

What is an acceptable reason to a delayed start date

The Guidance confirms UK Visas and Immigration (UKVI) will approve the following as acceptable reasons for a delayed work start date:

• Disruption to travel due to natural disasters, military conflict or pandemic;
• Administrative delays to the processing of the worker’s exit visa;
• Illness, bereavement or other compelling family or personal circumstances.

It should be added the above is not a comprehensive list and ‘each case will be judged on its merits’. However, sponsors should be aware that an individual’s permission to work can be cancelled at any time should UKVI not be satisfied a valid explanation has been provided for a delayed start date.

Concessions for migrants who are absent from the Sponsored work

Currently, where a sponsored worker is absent from work without pay for more than 4 weeks, a sponsor must report via the SMS and stop sponsoring the worker. However, a concession has now been added for those sponsored workers who are absent without pay for more than 4 weeks and where a permitted exception does not apply. Providing a ‘compelling and compassionate’ reason can be provided, a sponsor can report via the ‘Report Migrant Activity’ function on the SMS. The same caveat applies that UKVI can cancel the worker’s permission if the explanation provided is not deemed a valid reason.

Immigration Skills Charge (“ISC”) exemption

A new Trade and Co-operation Agreement for intra-corporate transfer exemption from the ISC will come into effect from 1 January 2023.

The exemption is contained in the draft legislation The Immigration Skills Charge (Amendment) Regulations 2022 and will apply to:

• A worker who is an EU citizen or Latvian non-citizen;
• Has been assigned to the UK by a business established in the EU and which forms part of the same sponsor group (same definition in line with Global Business Mobility routes); and
• The end date of the assignment is no more than 36 months after the start date.

The exemption does not apply to nationals of Iceland, Norway, Liechtenstein or Switzerland.

Right to Work Check – change of employment applications

A confirmation has been added to the updated Guidance to reflect  all workers who have a Skilled Worker  – Change of Employment application approved (including those working for the same sponsor) must be subject to a new right to work check before they can commence employment in the new role.

Service standard for in-country work applications extended to 16 weeks

UKVI published an update on its service standards for in-country Skilled Worker applications. As a result of the on-going Ukraine/Russia conflict, switching or extending a Skilled Worker application can take up to 16 weeks to be processed. UKVI aims to return to the 8 week service standards by the end of 2022.

It is helpful for employers and individuals to know the following fast track services are available for a quicker turnaround:

• Priority service processing – 5 working days at an additional cost of £500
• Super-priority processing – 24 hours at an additional cost of £800

However, if purchasing one of the priority services, UKVI do not guarantee a decision will be made within the published service standards.

Individuals and employers are advised to plan the submission of a visa application given the delays experienced across most UK visa categories.

If you have any queries about this development or need further assistance, please do not hesitate to contact Sundeep Rathod of our Immigration team.

 

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